proceeding in such court, not according to the course of the common law, after judgment thereon, and where there is alleged error in the proceedings.1

2. This writ is of universal application, unless taken away by the express words of the statute, or where the superior court is not the proper tribunal to proceed with the cause. And in such case the cause may be brought up, and any error corrected, and then remanded to the inferior court, with a writ of mandamus, in the nature of a procedendo; or the mandamus may be awarded, in the first instance, directing the inferior court to proceed and finish the case upon its merits.*

tiff can dismiss the case in the appellate court, and leave the whole matter as if no steps had been taken therein. Joliet, &c. Railw. v. Barrows, 24 Ill. 562.

3 Where a party has had no notice of an assessment of damages for land taken, until after the time limited for the appeal has expired, he may have the decision reviewed by certiorari. Joliet, &c. Railw. v. Barrows, 24 Ill. 562. And see McConnell v. Caldwell, 6 Jones Law, 469; Aycock v. Williams, 18 Texas, 392. In the last case it was held, that, if a justice of the peace grant a new trial without notice to the adverse party, who does not appear at the second trial, the latter may either enjoin the collection of the judgment thus rendered, or remove the cause to the District Court by certiorari. And certiorari will be granted to bring up an order of Quarter Sessions which was void on the ground of interest in the justices. See McHeran v. Melvin, 3 Jones Equity, 195; Darling v. Neill, 15 Texas, 104; Robson in re, 6 Mich. 137; Clary v. Hoagland, 5 Cal. 476. And one against whom a judgment is sought to be enforced, though not a party to the proceedings, may apply for a certiorari. Clary v. Hoagland, supra. And see Reg. v. Bell, 8 Cox, C. C. 28; Reg. v. Hammond, 12 W. R. 208; Reg. v. London & Northwestern Railw., 12 W. R. 208.

4 Woodstock v. Gallup, 28 Vt. 587; Ottawa v. Chicago, &c. Railw., 25 Ill. 43. And in New York the only way of reviewing a decision of a justice of the peace in summary proceedings is by a certiorari. Romaine v. Kinshimer, 2 Hilton, 519; Reg. v. Bristol & Exeter Railw., 11 Ad. & Ellis, 202; Crosse v. Smith, 3 Salk. 79. It is here said: "There is no jurisdiction which can withstand a certiorari. But if the certiorari be taken away, by the express words of the statute, the court will not indirectly accomplish the same thing by mandamus. Rex v. Justices of W. R. of York, in the Matter of Railway, 1 Ad. & El. 563; Rex v. Fell, 1 B. & A. 380; Rex v. Saunders, 5 Dow. & R. 611. Where the certiorari upon a given subject is taken away by act of parliament, it must be understood as extending only to the terms of the act, and for something done in pursuance of it. Denman, Ch. J., Reg. v. Sheffield, A. & M. Railw., 11 Ad. & El. 194; s. c. 1 Railw. C. 537, 545. Patteson, J., "Where there is a total want of jurisdiction and parties have proceeded in defiance of certiorari, it is not taken away." South Wales Railw. Co. v. Richards, 6 Railw. C. 197. See Jubb v. Hull Dock Co., 9 Q. B. 443. Denman, Ch. J., intimates, that

*3. Where the case is fully heard in regard to its merits, upon the rule to show cause, and there is no dispute about the facts, it is common for the Court of King's Bench to give judgment, without waiting for the record to be brought up on certiorari,5 similar to the course we have intimated in regard to applications for mandamus.6

SECTION II.

Where there is an Excess of Jurisdiction.

§ 164. Where there is an excess of jurisdiction, the appropriate remedy ordinarily is by action of trespass. And in such cases the court have more commonly refused to give redress, either by certiorari or mandamus. But it is not considered that a statutory provision, taking away the writ of certiorari, for any thing * done under the act of incorporation, or the general statutes as to railways, applies to things done wholly without the jurisdiction conferred.2

where the certiorari is taken away, in regard to proceedings under an act of parliament, that will not deprive the party of that remedy, when the proceeding is complained of, as not coming within the act, although some part of the proceedings is confessedly within the act, citing Rex v. The Justices of Kent, 10 B. & C. 477. See Reg. v. St. Olaves, 8 Ellis & Bl. 529. The right to have proceedings reversed in the Supreme Court does not deprive the party of the right to bring certiorari. Vanwickle v. C. & A. Railw.; Bennett v. Same, 2 Green, 145, 162. A certiorari suspends all proceedings in a case till it is decided. Taylor v. Gay, 20 Ga. 77.

5 In Re Edmunson, 17 Q. B. 67; s. c. 24 Eng. L. & E. 169. This was a case where the statute required the complaint to be made within six months after the cause of action arose, and for non-compliance with this requirement the court held the proceedings liable to be quashed, and granted the certiorari.

6 Ante, § 152. On certiorari the court will not reverse a judgment for error in taxing costs, but will correct the error in this respect. Marshall v. Burton, 5 Harring. (Del.) 295.

1

1 Reg. v. Bristol & Exeter Railw., 2 Railw. C. 99; 11 Ad. & Ellis, 202; Reg. v. Sheffield & Ashton-under-Lyne & Manchester Railw., 11 Ad. & El. 194; s. c. 1 Railw. C. 537, 545. The court will rarely grant this writ where the party has an opportunity to litigate the question in action at law. People v. Board of Health, 33 Barb. 344. And see Baltimore, &c. Co. v. Northern, &c. Railw., 15 Md. 193; Peabody v. Buentillo, 18 Texas, 313; Clary v. Hoagland, 13 Cal. 173. 2 Ante, § 162; Reg. v. Sheffield, A. & M. Railw., 11 Ad. & El. 194; s. c. 1 Railw. C. 545; South Wales Railw. v. Richards, 6 Railw. C. 197; Reg. v.

SECTION III.'

Jurisdiction and Mode of Procedure.

1. Lies in cases of irregularity, unless taken 3. Granting the writ is matter of discretion. away by statute.

Defects not amenduble. Not allowed for irregularity in proceedings, or evidence, or form of judgment.

§ 165. 1. Although it is held that a statutory provision, denying the certiorari, is to be limited to matters within the jurisdiction conferred, and will not restrict the power of the court in regard to matters wholly beyond the jurisdiction, the same rule cannot be extended to mere irregularity in the exercise of the jurisdiction. For unless the prohibition of the writ could apply to such cases, it could have no application, and it is incumbent upon the court to give it a reasonable operation and construction.1

2. An inquisition taken before two under-sheriffs extraordinary, will be set aside on that ground.2 But an inquisition taken before a clerk of the under-sheriff, and an assessor appointed pro hac vice by the sheriff, although none of the persons named in the act, for such an office, will not be quashed on certiorari.3

*3. The granting of the certiorari is matter of discretion, although there are fatal defects on the face of the proceedings, which it is sought to bring up. The affidavits should swear positively Lancashire & Preston Railw., 6 Q. B. 759; 3 Railw. C. 725. Where a jury, summoned under 8 & 9 Victoria, ch. 18, § 68, have taken into consideration, in awarding compensation, one claim, among others, as to which they had no jurisdiction, a certiorari lies, although such excess of jurisdiction does not appear upon the face of the proceedings, but it may be shown by affidavit. Penny in re, 7 Ellis & Bl. 660.

1 Reg. v. Sheffield, A. & M. Railw., 1 Railw. C. 537; 11 Ad. & El. 194. * Denny v. Trapnell, 2 Wilson, 379. This decision is upon the ground that the sheriff can only appoint one under-sheriff extraordinary.

3 Reg. v. Sheffield, A. & M. Railw., 11 Ad. & Ellis, 194. Thus showing the disposition of the court to sustain the proceedings when not in contravention of the express terms of the statute.

* State v. Hudson, 5 Dutch. 115; Lantis in re, 9 Mich. 324; People v. Board of Health, 33 Barb. 344; Johnson v. McKissack, 20 Texas, 160; People v. Peabody, 26 Barb. 437; Randle v. Williams, 18 Arkansas, 380; Mayo County in re, 14 Ir. Com. Law Rep. 392; Reg. v. Reynolds, 13 W. R. 925; s. c. 12 L. T. N. S. 580.

"

5 Reg. v. Manchester & Leeds Railw., 8 Ad. & Ellis, 413. Lord Denman says,

I disclaim the principle, that we are to issue a certiorari to bring up the inqui

and specifically to the existence of the defects relied upon.5 And where the party applying for the writ fails, from incompleteness in the affidavits, he will not have a certiorari granted him, upon fresh affidavits supplying the defects.5 The conduct of the prosecutor, especially if it had a tendency to induce the defects complained of, is important to be considered in determining the question of discretion, in regard to issuing the writ."

4. The court will not ordinarily quash proceedings in inferior tribunals for mere formal irregularity in the proceedings or the testimony received, especially when there was no objection made at the time; nor will the form of the judgment or decree be considered any sufficient ground for allowing the writ, provided substantial justice has been done.7

sition, on the ground that there may probably be defects; we must clearly see that facts do exist which will bring the defects before us." And an individual member of a corporation cannot carry on suit by bringing certiorari in the name of the corporation without the consent of a legal majority of the members thereof. Silk Manufacturing Co. v. Campbell, 3 Dutcher, 539.

6 Reg. v. South Holland Drainage, 8 Ad. & El. 429.

7 Salem & South Danvers Railw. v. County Commissioners, 9 Allen, 563.

§ 166. 1. THIS is a subject of very extensive application to corporations, for the purpose of determining when they have forfeited their corporate franchises, or usurped those not rightfully belonging to them, and for numerous other purposes.1 It will be found treated very much at length in treatises upon corporations. We should scarcely feel justified in going into the subject further here than it has a special application to railways. The form of the proceedings in modern times is by information of the attorney-general, or other public prosecuting officer, on behalf of

1 See Palmer v. Woodbury, 14 Cal. 43; Gano v. State, 10 Ohio N. S. 237; Parker v. Smith, 3 Minn. 240; Cleaver v. Commonwealth, 34 Penn. St. 283; People v. Ridgely, 21 Ill. 65; Scott v. Clark, 1 Clarke, 70; Mississippi, &c. Railw. v. Cross, 20 Ark. 443, 495.

2

Angell & Ames on Corporations, §§ 731-765. See State v. Mississippi, &c. Railw., 20 Ark. 443, 495; State v. Brown, 5 Rhode Island, 1; Lindsey v. Attorney-General, 33 Miss. 508. The information may set forth specifically the ground of forfeiture relied upon, or may call upon the corporation to show by what warrant they still claim to exercise their corporate franchises; and the information, like any other criminal information, is regarded as amendable. Commonwealth v. Commercial Bank, 28 Penn. St. 383. And the information must acquaint the court with the charter of the company, so as to show its powers and duties. Danville, &c. Co. v. State, 16 Ind. 456.